Rathod Vittal v. Shaik Basheer

ÐÏ​ࡱ​á>​þÿ ​U​W​þÿÿÿTÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿ ​ð​¿​ñ5​bjbjqPqP ​;V​:​:​e-EFÿÿ​ÿÿ​ÿÿ​¤​4​H​H​H​\​d​d​d​8œ​\ø​$\​ç​f​(​(​"J​J​J​J​J​J​f​h​h​h​h​h​h​$M​h​μ​lŒ​H​J​J​J​J​J​Œ​H​H​J​J​¡​¦​¦​¦​J​H​J​H​J​f​¦​J​f​¦​¦​H​H​¦​J​à± Éμ¡Ð​d​h​6​¦​f​·​0ç​¦​!​ž​a​!​¦​¦​!​H​o​¬​J​J​¦​J​J​J​J​J​Œ​Œ​H​^J​J​J​ç​J​J​J​J​\​\​\​ `​\​\​\​`​\​\​\​H​H​H​H​H​H​ÿÿÿÿ​THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI C.M.A.No.1395 of 2004 JUDGMENT: Not having been satisfied with the compensation awarded, the claimants had preferred this appeal under Section 173 of the Motor Vehicles Act assailing the award dated 29.01.2003 of the learned Chairman, Motor Accidents Claims Tribunal-cum-District Judge, Adilabad passed in O.P.No.894 of 1999. 2.

I have heard the submissions of the learned counsel for the appellants/claimants ('the claimants', for brevity) and the learned counsel for the 3rd respondent/the Insurer ('the Insurer', for brevity). None appeared for the 2nd respondent/owner-cum-insured, though notice has been served on the said respondent. The appeal against the first respondent/the driver was dismissed for default. 3.1 The case of the claimants, in brief, is as follows: 'The claimants 1 and 2 are the parents, the claimants 3, 4 and 5 are the brothers and the claimant no.6 is the sister of the deceased-Rathod Vijay @ Bujji. Prior to his involvement in the accident, the deceased was of 20 years of age and used to work as Muneem and earn Rs.3,000/- per month and contribute the same for the maintenance of the family.

The entire family of the claimants had depended upon the earnings of the deceased. On his death, the claimants have lost the sole male earning member of the family. The deceased would have survived for forty years more and would have had a bright future and prospects, but for his untimely death due to his involvement in the accident. The claimant are entitled to a compensation of Rs.3,00,000/-. The respondents 2 and 3, the insured and the insurer, are jointly and severally liable to pay the compensation to the claimants. 3.2 The claim against the 1st respondent/driver of the jeep was dismissed for nonprosecution.

The 2nd respondent/owner-cum-insured by filing a written statement had denied his liability to pay the compensation by inter alia contending that the accident had taken place due to bad condition of the road and that there is no rash and negligent driving on the part of the 1st respondent driver and that the compensation claimed is high and excessive. The 3rd respondent/insurer had filed a written statement denying the material allegations and had inter alia contended that the deceased had travelled in the jeep as a gratuitous passenger or as a fare paid passenger and that therefore, the insurance policy of the jeep does not cover the risk of the deceased and hence, the claimants are not entitled to claim any compensation from the insurance company.

It is further contended that in fact, the jeep was not insured with the 3rd respondent/insurer and that therefore, the 3rd respondent is not liable and that the petition against the 3rd respondent is liable to be dismissed. 3.3 Before the Tribunal, the 1st claimant, an eye witness to the accident and a supporting witness were examined as PWs 1 to 3 and exhibits A1 to A12 were marked on the side of the claimants. No oral and documentary evidence was adduced on the side of the respondents 2 and 3. 3.4 On merits, the Tribunal having held that the accident resulting in the death of the deceased had occurred due to the rash and negligent driving of the jeep by its driver/the 1st respondent had awarded a compensation of Rs.

1,04,000/- to the claimants 1 and 2 only with interest at 9% per annum from the date of the presentation of the petition besides proportionate costs and had fastened the liability on the insured and the insurer i.e., the respondents 2 and 3 to pay the said compensation. 4. The claimants had, therefore, filed this appeal contending that the Tribunal had awarded a meagre compensation amount. It is stated that no appeal or cross objections are filed by the insurance company. 5.1 The learned counsel for the claimants had contended as follows: "The compensation awarded by the Tribunal is a meagre amount. The Tribunal ought to have awarded a compensation of Rs.3,00,000/- with interest. The Tribunal had taken into consideration the monthly salary of the deceased at the rate of Rs.

1500/- per month without any basis though it was established that he used to earn Rs.3,000/- per month. The Tribunal ought to have applied multiplier of '17' instead of '11'. The trial Court had erred in assuming the ages of the claimants 1 and 2 i.e., the parents as 55 and 50 years without any basis or evidence. Hence, the appeal may be allowed and just, reasonable and fair compensation may be awarded." 5.

2 Per contra, the learned counsel for the insurance company would contend that the deceased died as a bachelor and that his parents are aged persons and that he is not the sole earning member of the family and that it is the responsibility of the 1st claimant to maintain the family including his wife, who is the 2nd claimant and his children, who are the other claimants and that since the other claimants 3 to 6 are brothers and sisters of the deceased, they are not dependants of the deceased and that in the absence of any credible evidence as regards the occupation and the income of the deceased, the Tribunal had rightly considered the monthly income of the deceased at Rs.

1500/- per month and had correctly applied the multiplier (11) taking into consideration the ages of the parents of the deceased and had rightly determined the compensation and that the well-reasoned award of the Tribunal does not call for any interference and that the appeal is devoid of merit and is liable to be dismissed. 6. Now, the only point for determination is: Whether the compensation awarded by the Tribunal is not just, reasonable and fair as contended by the claimants? And, if so, what shall be the just, reasonable and fair compensation to be awarded to the claimants herein? 7. POINT: 7.1 The claimants are the parents, a major brother, two minor brothers and one minor sister of the deceased.

PW1, the father of the deceased in his evidence had asserted the claimants' relationship with the deceased and the said fact is not in dispute. As regards the multiplicand, the contentions and the evidence and the other allied aspects are as follows: 'The deceased was of 20 years of age at the time of the accident and was working as a Muneem and used to earn Rs.3,000/- per month and contribute the same for the maintenance of the family and that he is the sole male earning member and that all the claimants had depended upon his earnings. PW3 had testified that the deceased worked under him as a Muneem and that he used to pay Rs.3,000/- per month to the deceased and that he had issued exhibit A12 salary certificate. In his cross-examination, he had stated that he was getting Rs.5,000/- per month and that out of the same, he was paying Rs.

3,000/- per month to the deceased as he was looking after the entire business. PW2 is said to be an eye witness to the accident. Thus, the evidence brought on record which is adverted to supra, is not sufficient to safely conclude that the deceased used to earn Rs.3,000/- per month as it is difficult to accept that the PW3-the employer who was earning Rs.5,000/- per month used to pay a salary of Rs.3,000/- to the deceased, who was his Muneem. Viewed thus, this Court finds that the monthly earnings of the deceased can be fixed at Rs.1,500/- only as was rightly done by the Tribunal. Further, as per the ratio in the decision in Rajesh and others v. Rajbir Singh and others​ , there must be an addition of 50% to the actual income of the deceased towards future prospects. If so added, the monthly income of the deceased works out to Rs.2,250/-.

In Sarala Verma and Others Vs. Delhi Transport Corporation and Another​, the Hon'ble Supreme Court held as follows: - 'Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as dependant.

In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family.' In this case, there is no contrary evidence to hold that the brothers and sisters of the deceased, who was an young man of 20 years and earning a meagre income, depended upon him. In the facts and circumstances of the case, one half of the said amount is to be deducted towards personal and living expenses of the deceased. If Rs.

1,125/- is so deducted, the monthly contribution to the family of the deceased works out to Rs.1,125/-. The annual loss of dependency works out to Rs.13,500/-; and the same is accordingly determined as the multiplicand. Coming to the aspect of multiplier, from the pleadings, evidence and the contents of the crime record, it is evident that the deceased was of 20 years of age at the time of his death. A Division Bench of this Court in Oriental Insurance Company v. Kunapareddy Saroja​ having considered the precedential guidance in various decisions of the Supreme Court had held that the age of the deceased shall alone be considered to apply appropriate multiplier even though the deceased is a bachelor. Therefore, the appropriate multiplier is '18' (eighteen). Thus, the compensation payable works out to Rs.2,43,000/- (Rs.13,500/- X 18).

The said compensation is accordingly awarded under the head 'loss of dependency'. Further, the claimants are also entitled to Rs.25,000/- towards 'funeral expenses' besides and Rs.5,000/- each towards 'loss of estate' and 'transport expenses'. The total compensation awardable to the claimants, thus works out to Rs.2,78,000/-. The said compensation is accordingly awarded. The rest of the claim is disallowed. 8 In the result, the appeal is allowed with proportionate costs awarding a total compensation of Rs.2,78,000/- (Rupees Two Lakhs Seventy Eight thousand only) to the claimants. On the compensation already awarded, the trial Court had granted interest at 9% per annum simple. Having regard to the facts and circumstances, the insurance company is directed to deposit before the Tribunal the enhanced portion of compensation i.e., Rs.

1,74,000/-(Rupees one lakh seventy four thousand only) with interest at 7.

annum simple from the date of the original petition till the date of deposit and also the proportionate costs within two months from the date of the receipt of a copy of this judgment. The already awarded compensation or any portion thereof, if not already paid or deposited as per the award of the Tribunal, the same may also be paid or deposited accordingly. In case of deposit of the said sums before the Tribunal, the claimants 1 and 2 are entitled to receive the same in equal shares without furnishing any security. Miscellaneous petitions, if any, pending in this appeal shall stand closed. _____________________ M. SEETHARAMA MURTI, J 01st May, 2015 RAR ​ (2013) 9 Supreme Court Cases 54 ​ 2009 ACJ 1298 ​ 2014 (5) ALT 99 ​ ​ ​ ​ ​PAGE ​ ​PAGE ​7​ MSRM, J C.M.A.No.

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